No Cellphone Search Without Warrant, Supreme Court Rules

The cops may be able to sift through a suspect's physical possessions, but when it comes to digital property, the rules are different, the Supreme Court has ruled. A frisk may be perfectly OK, but the police better keep their hands off cellphone contents unless they've got a warrant. Such a search "implicates substantially greater individual privacy than a brief physical," the Court said.

By Richard Adhikari
06/26/14 9:43 AM PT

Police need a warrant to search the cellphone contents of people they have arrested, the United States Supreme Court
ruled Wednesday.

Warrantless searches, in essence, would impact privacy to a far greater extent than is acceptable.

The ruling also applies to individuals stopped for questioning by the authorities, Jake LaPerruque, the Fellow on Privacy, Surveillance, and Security at the Center for Democracy and Technology, told TechNewsWorld.

"The Supreme Court properly recognized that digital information is fundamentally different regarding both quality and quantity, and that it requires a greater level of protection," LePerruque explained.

The Court's Rationale

"A search of digital information on a cell phone does not further the government interests identified in
Chimel," the Court said. Those interests essentially are concerns about the safety of police officers and the preservation of evidence that otherwise might be destroyed.

Such a search "implicates substantially greater individual privacy than a brief physical," the ruling said.

The scope of the privacy interests at stake "is further complicated by the fact that the data viewed on many modern cell phones may in fact be stored on a remote server," the court wrote. "Thus, a search may extend well beyond papers and effects in the physical proximity of an arrestee, a concern that the United States recognizes but cannot definitively foreclose."

Applying the
Gant standard, which allows warrantless searches of vehicles to preserve police officers' safety or evidence relating to the crime of arrest "is not appropriate in this context, and would provide no practical limit at all when it comes to cell phone searches," the Court determined.

Restricting the scope of a warrantless cellphone search to information relevant to the crime, the arrestee's identity, or officer safety, "would again impose few meaningful constraints on officers," the Court said.

An analog rule suggested, under which officers could search cellphone data if they could have obtained the same information from a nondigital counterpart, "would allow law enforcement to search a broad range of items contained on a phone even though people would be unlikely to carry such a variety of information in physical form, and would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records," the Court pointed out.

The decision "will have some impact on the ability of law enforcement to combat crime," but it only generally requires a warrant before a cellphone search and does not render information on the phone immune from a search because the exigent circumstances exception will still apply where appropriate, the Court said.

The warrant requirement "is an important component of the Court's Fourth Amendment jurisprudence."

Possible Impact of the Ruling

Evidence in other cases involving warrantless police searches of arrestees' cellphones now "may be vulnerable to being thrown out," Nate Wessler, a staff attorney at the American Civil Liberties Union, told TechNewsWorld.

The ruling also may provide fresh ammunition for those opposing the U.S. National Security Agency's collection of telephone metadata.

"While it says nothing explicitly about NSA surveillance, the way it discusses technology and the fact that technology can group together lots of information may make a very compelling argument for how NSA surveillance may be problematic," Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told TechNewsWorld.

"The court stated that pooling digital information can cause those data to be more revealing and infringe upon privacy," the CDT's LaPerruque said. "This is one of the most basic problems with bulk collection, and could significantly shift how courts address the constitutionality of bulk collection in the future."

Meanwhile, police departments' controversial use of Stingray phone trackers, which can vacuum up all information from cellphones in the vicinity, also may be challenged on the basis of the Supreme Court's ruling.

"There's some interesting language in the opinion that could be applied to Stingrays," Fakhoury said, even though that's a different legal issue.

Richard Adhikari has written about high-tech for leading industry publications since the 1990s and wonders where it's all leading to. Will implanted RFID chips in humans be the Mark of the Beast? Will nanotech solve our coming food crisis? Does Sturgeon's Law still hold true? You can connect with Richard on
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